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In my practice of guardianship and family law in Oklahoma, a common question is whether a Guardianship is needed for an adult or if a Power of Attorney ("POA") will suffice. The response is typically "It depends!" Choosing between these options requires consideration of several factors. To begin, it's important to understand what each of these terms means.
What is Guardianship?
Guardianship is a legal process set up by a court. In this case, a guardian is appointed to make choices for a person called the ward. This often happens when the ward can't take care of themselves and/or their money because they are old, sick, disabled, or otherwise incapacitated.
The guardian makes important decisions about the ward’s care, medical needs, and finances. Their role is to protect the ward's best interests.
Guardianship is not the same as a Power of Attorney. A POA can be created without going to court and does not always need court approval. However, guardianship involves a court process and regular check-ins to ensure the ward's rights and well-being are respected.
In Oklahoma, a Guardianship allows one person to make decisions and take action for another who cannot do so, whether due to physical or mental issues. Guardianship requires a case to be filed in a District Court and has more rules than a POA.
What is a Power of Attorney?
A Power of Attorney is a document that lets one person make decisions for another if they become unable to do so. POAs can give someone control over another person's finances and medical care if certain conditions are met.
Usually, a POA includes rules that must be followed before the person loses their ability to care for themselves. Often, this requires letters or records from doctors stating that the person can no longer manage their own care or finances.
Which one do I need?
There are many contributing factors that our Oklahoma guardianship attorneys could discuss with you in detail, but here are some of the most common scenarios we see in our Family Law practice:
When Incapacity Occurs
You can put a POA into place prior to the subject of that POA losing the capacity to care for themselves or their finances. These usually come as part and parcel of representation with an estate planning attorney.
Adversely, an adult guardianship requires the potential ward (the subject of the guardianship) to be incapacitated at the time of filing. You must be able to allege when the case is filed why the guardianship is currently needed. When people come in for guardianship consultations and are still considering a POA, there is often a concern that the person is already beyond the point of being able to consent to signing a Durable Power of Attorney document. At that point, a guardianship would be the only appropriate option.
Initial Court Involvement
A POA is initially drafted, signed, notarized, and then just continues to exist unless challenged.
Pursuing an adult guardianship requires that a case be filed in an Oklahoma District Court. Additionally, there are other requirements that tell us who must be given notice of the new guardianship case and how they should be given notice, whether that be by certified mail or by in-person service. This often requires the advice and aid of counsel.
Continued Court Involvement
Unless challenged in court, a POA operates as written with no additional requirements outside of those outlined in the document itself.
A guardianship, however, continues to be monitored by the court for as long as it exists. A guardian will have to file an annual report each year outlining things like the well-being and progress of the ward. For Guardians that are also over the Ward’s estate, they must file an annual accounting of how the Ward’s money has been spent in the preceding year. In addition to these annual requirements, Guardians need court permission throughout the life of the guardianship to do many things that someone operating under a POA would not need permission for.
For instance, a Guardian needs approval for actions like selling the ward's assets, relocating the ward to another county or state, and transferring the ward's assets out of state. This permission process can be lengthy.
Additional Limitations
A person can make anyone their POA in the moment, while there are specific requirements that must be met by someone hoping to Petition for Guardianship. A guardian must be over the age of 18, of sound mind, may not have a history of criminal convictions, protective order, or pending criminal charges, must pass a background check through the Oklahoma State Bureau of Investigation, must not have declared bankruptcy within the last five (5) years, must have no financial obligation to the ward, must have no conflict of interest preventing the Guardianship, and must legally be present in the United States.
Additional Allowances
Guardianships allow for multiple people to be involved to help each other and the Ward through this process. As an example, two people can serve together as Co-Guardians. This can be two people that are each a guardian of both the ward’s person and property or one person can be Guardian of the Person while another person is Guardian of the Property. The circumstances of each case will be analyzed to determine what is best based on its particular circumstances.
Terminating
Lastly, though a POA can be nullified by a new POA going into effect or the person revoking the POA, this all must occur by the subject of the POA taking action. In contrast, there are multiple people that can file to terminate a guardianship, though it will require a filing with the court. Guardianships can be terminated for various reasons, including a guardian’s failure to fulfill his or her duty or if the circumstances that made a guardianship necessary are no longer present.
Hopefully, this gives some clarity. If you're uncertain of what's best for your circumstances, an attorney who specializes in Family Law can make the process of filing for adult guardianship or securing power of attorney less stressful, more efficient, and ensure all actions align with your best interest.
Ball Morse Lowe has attorneys in our offices in Norman, Stillwater, Edmond, and Oklahoma City that can help you carry out either of these options and keep you educated and informed throughout the process. Call 405.701.5355 to set up your free consultation with an attorney.
